Foster v. Yazoo & Mississippi Valley Railroad

72 Miss. 886

• Court: Mississippi Supreme Court
• Decided: March 15, 1895
• Status: Published

Opinion

Whitfield, J.,

delivered the opinion of the court.

Section 663, code 1892, like its predecessors in the codes of 1857, 1871, and 1880, provides its own special statute of limitations, and contains no saving in behalf of minors. The words ‘ ‘ any of the personal actions before mentioned, ’ ’ in § 2746, must be held to apply to the actions mentioned in chapter 83 of the code of 1892, of which it is a part. This is settled by the case of Maitland v. Keith, 30 Miss., 499. This case and Martin v. Gilleylen, 70 Miss., 324, and Morgan v. Hazlehurst Lodge, 53 Ib., 665, are conclusive of the propriety of the action of the court below. Pearson v. McMillan, 37 Miss., 588, and Bacon v. Gray, 23 Ib., 140, are not in point. Frost v. Railway Co., 9 Atlantic Rep., 790, is also inapposite. Railway Co. v. Sanders, 5 S. W. Rep., 563, is based on the Kentucky statute. Chapter 57, § 3, of the Kentucky statutes, which provides for the recovery of damages as our § 663, code 1892, does (except that the Kentucky statute, in the case cited, provides for punitive damages), did not contain in itself the one-year statute. Chapter 71 provided a limitation of one year, and another section of that chapter contained a saving in favor of infants. This legislation, therefore, expressly saved the infant’s rights. But, again, the Kentucky court held that there was but one cause of action, could be but one recovery, and that, notwithstanding the saving in favor of the infant, such saving would operate in its favor only where there was no other person m esse who could sue on the joint cause of action. This view the Texas supreme court repudiates, on the ground that, whilst there is, as that court also holds, but one cause of action, there may be two or more recoveries on that one cause of action in favor of the parties beneficially entitled under the statute, accordingly as all of them are, or are not, parties to the first or succeeding actions, the action in that state being solely for the benefit of the surviving wife, child, etc. The settled view of ^ 663, code 1892, here is that there are two causes of action, which may co-exist, but are wholly independent of each other. Phillips v. Railroad Co., 64 Miss., 693. So that the Kentucky decision is, both for that reason and because its statute contains an express saving in favor of infants, inapplicable here. The Texas decision is also unpersuasive for the same reasons. There is much apparent force in the suggestion of learned counsel that to hold that the appellant, an infant only two years old, without father or mother or guardian — there being, also, no administrator on the estate of his father, the party killed by appellee — is barred, results in the anomaly that the administrator, by virtue of § 1916, code 1892, may bring an action, in case of death, within six years, whilst the infant will be barred, under § 663, in one year from the death. It is to be observed, however, first, that the causes of action are not the same. The administrator sues in this state to recover the damages sustained by his intestate intermediate the injury and the death — damages for personal injuries; such has been the holding — -and is asserting a derivative right. Railroad Co. v. Pendergrass, 69 Miss., 125. But the father or mother or children or next of kin sue for the loss to them occasioned by the death — the value to them of the deceased as a breadwinner —and assert a right given for the first time by § 663. And, secondly, the matter is one within the power of the legislature to regulate at will, and ita lex scri/pba est. Considerations suggested by the manifest hardship of the instance are proper to be addressed to the legislative branch of the government, but cannot influence a court to infringe the general rule. It is to be said, too, as well put in the Kentucky case, that the nature of the cause of action is such that it is in the interest of a sound public policy that the right to sue should.be limited to some short period, as against all parties. However deeply regretting, therefore, the seeming hardness of the precedent, we must not permit that hardness to betray us into bad law.

The judgment is affirmed.